People v Lamb

[*1] People v Lamb 2005 NY Slip Op 51704(U) [9 Misc 3d 1120(A)] Decided on October 20, 2005 Supreme Court, Queens County Rotker, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 20, 2005
Supreme Court, Queens County

THE PEOPLE OF THE STATE OF NEW YORK

against

Charlie Lamb, Defendant.



604/ 05



CHANDRA GOMES ESQ.

For the Defendant

RICHARD A. BROWN, D.A.

BY: JOSETTE SIMMONS-MC GHEE, A.D.A. Opposed

Seymour Rotker, J.

The following constitutes the opinion, decision and order of the court.

An indictment has been filed against the defendant accusing him inter alia of the crime of Criminal Possession of a Weapon in the Third Degree (PL §265.02[4]). The charge is that on October 22, 2004, defendant knowingly possessed a loaded firearm, an air pistol, a forged instrument and other items in a vehicle owned by him.[FN1]

Defendant, claiming to be aggrieved by an unlawful search and seizure, has moved to suppress the aforesaid items seized from his vehicle by Police Officer Davis Aviles on October 22, 2004.

In this case, the People assert that the seizure of the aforesaid items from the defendant's vehicle was lawful and obtained pursuant to an inventory search. The People contend that the vehicle search was proper because defendant's car was being vouchered as a result of his failure to have the vehicle lawfully insured; thus, the car could not be legally operated in New York State. The People have the burden, in the first instance, of going forward to show the legality of police conduct. Defendant, however, bears the ultimate burden of proving by a preponderance of the evidence that the physical evidence should be suppressed.

The People also contend that defendant's arrest was independent of the recovery of the property because the property recovered is subject to the inevitable discovery doctrine. Thus, the People assert that defendant's argument that probable cause did not exist to arrest him is not determinative of the issue relating to the admissibility of the property recovered in defendant's vehicle.

In his application, defendant has also moved to suppress a statement made by him to Officer Aviles, upon the ground that it was involuntarily made within the meaning of CPL § 60.45. However, prior to commencement of the hearing the District Attorney stated that there were no statements made by the defendant to any law enforcement personnel that the People intend to use at the trial of this case.

A pretrial suppression hearing was conducted before me on August 23, 2005 and September 14, 2005.

Testifying at this hearing was Police Officer Davis Aviles. I find his testimony to be credible.

I make the following findings of fact:[*2]

On October 22, 2004, Police Officer Davis Aviles was working with two other officers on a burglary apprehension team. His partners were Officers Iaccino and Viruet (phonetic). Officer Aviles was a passenger in the unmarked police vehicle.

As a result of information received over the police radio, Officer Aviles was aware that a robbery had taken place on or about October 15, 2004 in the 108th Precinct and that the robbers were two male blacks, who had used guns in the course of the robbery and who were using a gold Chrysler automobile with Pennsylvania license plates as a get away car.

On October 22, 2004, Police Officer Aviles and his team received information over the police radio, unrelated to the previous robbery referred to above, that a civilian witness, a manager of a clothing store located at 37-57 Junction Boulevard, had observed a male black walking past his store shortly before 12:15 P.M. The manager recognized that person as someone who had shoplifted clothing from his store on October 15, 2005. There was also a woman with the male when the store manager observed the shoplifting incident. Those persons fled his store. The manager followed them and saw the persons entering a gold Chrysler car with Pennsylvania license plates.

Officer Aviles and his team responded to the Junction Boulevard store and the manager got into the police car to canvas the area. Within a short time, Officer Aviles observed a gold Chrysler automobile with Pennsylvania license plates at Junction Boulevard and 37th Avenue. Because of the information that the officers had of the prior robbery with guns, Aviles and Iaccino approached the Chrysler with guns drawn and, after observing two male blacks seated in the front seat, the occupants were directed to get out of their car. The defendant was the driver and Eric Kidd was the passenger. The manager identified Kidd as one of the persons who shoplifted in his store. Both Kidd and the defendant were handcuffed and taken to the 115th Precinct.

Aviles drove the Chrysler to the precinct and left it in the police parking lot, locking it with a key.At the precinct, Aviles asked defendant Lamb (who appears to be a person of Afro-American descent) for documentation pertaining to the car. He was directed to the glove compartment to obtain insurance information for the Chrysler. Defendant was the owner of the vehicle. However, once Aviles obtained the insurance card and called the insurance company listed on it, he discovered that the defendant's vehicle was not insured by the company. Thus, the car was impounded since it could not be legally driven in New York without insurance. As part of police procedure, when a car is impounded it must be searched and all items in it must be safeguarded. Aviles conducted a search of the car about an hour after arriving at the precinct. Among the items found in the car were: a loaded pistol which was secreted in a fuse box located on the driver's side of the vehicle. Aviles did not testify as to what, if any, standardized procedures were followed in conducting the inventory search.

I make the following conclusions of law:

The People assert that the property recovered from defendant's vehicle was obtained [*3]pursuant to an inventory search of the vehicle. The purpose of an inventory search is threefold. First, it protects an owner's property while it is in police custody. See People v. Galak, 80 NY2d 715, 719, 594 N.Y.S.2d 689 (1993). Second, it insures the police against claims of lost, stolen or vandalized property. See id. Finally, it guards the police and others against dangerous instrumentalities that would otherwise not be detected. Id.; see also People v. Johnson, 1 NY3d 252, 771 N.Y.S.2d 64 (2003).

Significantly, an inventory search should be performed according to "an established procedure clearly limiting the conduct of individual officers that assures that the searches are carried out consistently and reasonably." See People v. Jeffrey, 18 AD3d 776, 795 N.Y.S.2d 703 (2d Dept. 2005) quoting People v. Galak, supra. Furthermore, the procedure for conducting the inventory search must be reasonable. See Galak, supra at 718.

Reasonableness of a search is determined by "weighing the governmental and societal interests advanced by the search against the individuals's right to be free from arbitrary interference by law enforcement officers." See id. Two standards of reasonableness for carrying out the search have been established. "The procedure must be rationally designed to meet the objective that justify the search in the first place. . . . and must limit the discretion of the officer in the field." See Galak, supra at 719 citing Florida v. Wells, 495 U.S. 1, 4, 110 S. Ct. 1632 (1990).

Here, the People have not met their burden of proof. Although the officer called the search an inventory search, no established procedure for conducting inventory searches was elicited at the hearing. See e.g. People v. Robinson, 97 NY2d 341, 741 N.Y.S.2d 147 (2001); People v. Russell, 13 AD3d 655, 788 N.Y.S.2d 139 (2d Dept. 2004)(although defendant's arrest was lawful, no testimony was elicited from police officer regarding his knowledge of general objectives of inventory search or the existence of departmental policy regarding inventory searches; thus, defendant's motion to suppress property recovered from vehicle was improperly denied by trial court). Thus, this Court cannot even reach the question as to whether the procedure, if one existed, for conducting inventory searches met the test of reasonableness outlined above. See Johnson, supra at 256. No inventory report was introduced in evidence, nor was the defendant asked to sign any type of receipt for items that may or may not have been delivered to him. Furthermore, without any type of procedure in place, the officer would appear to have unlimited discretion in conducting the search. See e.g. People v. James, 1 NY3d 252, 771 N.Y.S.2d 64 (2003).

Notably, because the People have not met their burden of establishing that the inventory search itself was properly conducted, suppression is warranted for this reason. The Court need not address the propriety of defendant's custody and apprehension. However, for the purpose of clarity, at the outset, the police did not have probable cause to apprehend defendant. See People v. Chase, 85 NY2d 493, 501, 626 N.Y.S.2d 721 (1995). Thus, the Court turns to a discussion of reasonable suspicion, which "represents that quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity is at hand." See People v. Martinez, 80 NY2d 444, 591 N.Y.S.2d 823 (1992), quoting People v. Cantor, 36 NY2d 106, 365 N.Y.S.2d 509 (1975)(internal quotations omitted). To determine if reasonable suspicion exists, the totality of circumstances are evaluated. See People v. Lynch, 285 AD2d 518, 728 N.Y.S.2d 489 (2d [*4]Dept. 2001). The standard for reasonable suspicion is less than what is required to rise to the level of "probable cause."[FN2]

Here, reasonable suspicion existed initially. The police had information that the gold Chrysler with Pennsylvania plates had been used in a prior incident, a gun point robbery a week earlier by two male blacks, and that it appears to have occurred on the same day as the shoplifting complaint they were investigating. Additionally, the vehicle was properly approached based upon the fact that reasonable suspicion existed because of the shoplifting incident the officers were investigating in which the complainant was accompanying them in the car in order to conduct a canvas. However, upon approaching defendant, it was the passenger who was identified as the shoplifter and not the defendant. The police did not make any inquiry of defendant, the driver, when they approached the vehicle. The police handcuffed defendant, confiscated the car and took him back to the precinct. Therefore, this Court cannot find that the police properly detained defendant by taking him back to the precinct in handcuffs based upon the totality of circumstances. Although the police could have made an inquiry at the scene to inspect defendant's license, registration and insurance, they failed to do so. Thus, they had no cause to believe at that time that the car was not validly insured. See People v. Peterson, 295 AD2d 452, 743 N.Y.S.2d 303 (2d Dept. 2002)(information developed during encounter provided reasonable suspicion to detain and transport defendant to precinct to rapidly confirm or dispel suspicions that he committed a crime). By taking defendant back to the precinct and handcuffing and detaining him, the police had effected an arrest, as discussed herein, which required probable cause. Probable cause did not exist and therefore, defendant was detained unlawfully. Cf. People v. Allen, 73 NY2d 378, 540 N.Y.S.2d 971 (1989)(officers properly placed handcuffs on defendant who was apprehended in dark alley where even though at time police only possessed reasonable suspicion to apprehend defendant, it was a safety measure taken until defendant, an alleged armed robber could be properly searched).

It is not disputed that defendant was not asked to produce his license, registration or insurance

card before being taken into custody and transported to the precinct. Nevertheless, the People assert that the property would have been recovered from defendant's vehicle once an inventory search was conducted after his insurance was checked back at the police station and found to be invalid. However, the officer never testified that he would have checked defendant's insurance by making a call to the insurance company to determine its validity had defendant produced the insurance card that he had in his glove compartment while at the scene. Moreover, the officer never testified that standard police procedure would have required that if he did not arrest defendant at the scene like he did, he would have been required that he check defendant's license, registration and insurance. Furthermore, the [*5]officer never testified that this was his standard practice when stopping vehicles. The officer never asked for this documentation until he was back at the precinct. Thus, the People's reliance upon People v. Turriago, 90 NY2d 77, 659 NY2d 183 (1997), is misplaced. [FN3]

Thus, reasonable suspicion did not exist to detain defendant for the length and manner of time as was done here. See e.g. People v. Hicks, 68 NY2d 234, 508 N.Y.S.2d 163 (1986)(reasonable detention found where suspect transported to crime scene and identification occurred ten minutes later; defendant's answer when stopped as to why he was in area was suspect). Defendant was handcuffed and transported back to the precinct without any inquiry, an inquiry which could have escalated the encounter to one where probable cause existed. See e.g. People v. Robinson, 282 AD2d 75, 728 N.Y.S.2d 421 (1st Dept. 2001).[FN4] This action by the police constituted an arrest for which probable cause was required [*6]and which they did not possess.

Significantly, when the People rely upon the "inventory-search" exception to the warrant requirement to justify obtaining property as they do here, the initial inquiry must be whether the vehicle was impounded lawfully. See United States v. Duguay, 93 F.3d 346, 351, 1996 U.S. App. LEXIS 20460 (7th Cir. Ill. 1996). Only a vehicle which is lawfully impounded may be subjected to an inventory search, therefore, a determination to impound a vehicle is a distinct question from a determination to inventory its contents. Id. Defendant's vehicle was not properly impounded at the outset but may have become so had the police performed a proper investigation when they initially approached defendant in the car.

The People further argue against suppression by stating that even if defendant was detained unlawfully, an "independent source" existed for the police to recover the property. The People claim that once it was discovered that defendant's insurance card was fraudulent, they possessed probable cause to arrest him and inventory the car and that the discovery of the invalid insurance provided them with an independent source to discover the property since it was an intervening factor. However, defendant's unlawful detention with no attenuation cannot be deemed to have resulted in a voluntary consent by defendant allowing the officers to obtain his insurance information by telling them to retrieve it from the glove compartment of his vehicle.[FN5] Defendant's consent, after his unlawful detention was not mitigated in any way, nor was a proper inventory search established by the People.

Accordingly, defendant's motion seeking suppression of the property recovered from his vehicle is granted.

Kew Gardens, New York

Dated: October 20, 2005 [*7]

SEYMOUR ROTKER

JUSTICE SUPREME COURT Footnotes

Footnote 1:Two credit cards were also recovered from the defendant's vehicle: one bearing the name "Heather Clark" and the other, "Jessica Simms".

Footnote 2:In the present case, the police did not have probable cause to arrest defendant, thus, this Court reviews the lower standard of reasonable suspicion to see if the People have established that this standard was satisfied when stopping and detaining defendant and transporting him back to the precinct in handcuffs.

Footnote 3:In Turriago, defendant was stopped for a traffic infraction. He consented to a search of his vehicle and a body was discovered. The officer testified that had the defendant refused the consent to search the vehicle, the officer would have checked the validity of his license at the scene. Such a check would have revealed, within minutes, that the defendant's license was suspended. Thus, since no other occupant of the vehicle had a license, the vehicle would have been impounded and an inventory search would have revealed the presence of the body. Thus, the People proved that a very high degree of probability existed the body would have inevitably been discovered. See Turriago, at 86-87.

Footnote 4:In Robinson, the Court addressed the issue as to whether the defendant was arrested by the actions of the police. The facts of Robinson are similar to the instant matter. The defendant was stopped when an officer observed him matching the description of a robbery suspect who was wanted for a pattern of robberies in a specific area. He was described as a black male in his mid-20s or early 30s, five feet seven inches to six feet tall, who usually wore sunglasses and a blue jacket with a bulldog pattern on the back. A radio transmission was received pertaining to a suspicious male in a clothing store on Hudson Street, the vicinity of the past robberies. Two witnesses described the suspicious male as a black man, wearing sunglasses and a blue jacket with a bulldog on the back. An officer who heard the radio transmission began canvassing the area and observed the defendant who was wearing a blue jacket with a bulldog on the back peering inside a store and talking to another individual and looking up and down the street. Furthermore, the officer observed the defendant peer into a second candy store. After watching the defendant engage in this activity for 20 minutes, he was stopped and frisked by the officer. The Court held that this conduct was proper. The defendant was then handcuffed and transported to the precinct and placed in a holding cell and told that he would be released if he was not identified. The defendant was held for two to three hours before being identified in a lineup by two witnesses from two past robberies, which robberies occurred four days earlier. The defendant was arrested and his jacket seized. In Robinson, the defendant claimed that he was improperly arrested when he was handcuffed and taken to the precinct and that probable cause did not exist to arrest him. An arrest requires probable cause. The People argued that the defendant was being properly detained temporarily based upon reasonable suspicion and had not been arrested until he was positively identified in the robberies. However, the Court held that suppression of the evidence was warranted. "[T]he combination of length of time a defendant is detained and the manner in which he is held is of critical importance. Being taken involuntarily, handcuffed and transported to a police station, and then held in a barred cell for over two hours, requires the conclusion that the initially proper detention of defendant in this matter developed into an arrest." See Robinson, supra at 80. Here, even assuming the police may have possessed reasonable suspicion initially and the stop was proper based upon the fact that the store owner just described the vehicle, once defendant was handcuffed and brought to the precinct the police needed probable cause which they did not possess since defendant was arrested at that point and the length of the temporary detention was unreasonable. Notably, in Robinson, the matter was remanded for an independent source hearing and the lineup identifications were ultimately deemed admissible. See People v. Robinson, 8 AD3d 95, 778 N.Y.S.2d 151 (1st Dept. 2004).

Footnote 5:See People v. Borges, 69 NY2d 1031, 517 N.Y.S.2d 914 (1987)(People bear burden to demonstrate consent was acquired by means sufficiently distinguishable from arrest to be purged of illegality); see also People v. Banks, 85 NY2d 558, 626 N.Y.S.2d 986 (1995); People v. Richardson, 9 AD3d 783, 781 N.Y.S.2d 381 (3d Dept. 2004).

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